United States District Court, D. New Jersey
EUGENE I. KELLY, Petitioner,
STATE OF NEW JERSEY, et al. Respondents.
I. Kelly Petitioner Pro se.
C. Formica, Esq. Atlantic County Prosecutor's Office'
Counsel for Respondents.
L. HILLMAN, U.S.D.J.
Eugene I. Kelly (“Petitioner”), a prisoner
formerly incarcerated at the Bayside State Prison and
presently on parolehas filed a Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (the
“Petition”). ECF No. 1. By order of Court,
Respondents filed an Answer to the Petition (the
“Answer”). ECF No. 14. Petitioner then filed a
reply to the Answer (the “Reply”). ECF No. 18.
The Petition is ripe for disposition. For the reasons stated
below, the Petition will be denied.
March 26, 2007, Officer Mark Gorman was conducting routine
patrol in a marked police vehicle in Pleasantville, New
Jersey. ECF No. 14-10 at 63-64, 68, 71 (trial transcript). As
Officer Gorman approached a red light on Washington Avenue
around 2:20 a.m., he saw Petitioner talking on a cellular
telephone while walking and swaying back and forth on the
sidewalk. Id. at 64, 69, 70. Petitioner looked at
Officer Gorman, pointed to his cellular telephone, and said
in a slurred voice, “I'm on my phone. Just on the
phone.” Id. at 70-71. Officer Gorman did not
observe anyone else on the sidewalk or street at that time.
Id. at 144, 169.
Gorman was concerned for Petitioner's safety because he
believed that Petitioner was intoxicated. Id. at
71-72. He turned his patrol car around to check on
Petitioner's well-being. Id. at 72. As Officer
Gorman went to exit his vehicle, Petitioner turned around and
began to walk in the opposite direction. Id. at 73.
Officer Gorman said to Petitioner, “Yo, where are you
going? Come here . . . I want to talk to you.”
Id. at 73. Petitioner stated, “Why are you
harassing me? . . . I'm not doing anything wrong. I'm
just waiting for a ride.” Id. Officer Gorman
asked Petitioner where he was going, and Petitioner said,
“Over there” and, after some back and forth,
stated that he was going to get cigarettes. Id. at
74-75. Officer Gorman did not believe that any store within
about three miles was selling cigarettes at the time of the
night. Id. at 76. At this point,
Officers Mark Porter and Robert D'Arcangelo arrived.
Gorman asked Petitioner for identification, to which
Petitioner responded, “Why are you doing this?”
Id. at 77. After asking the question again three
times, Petitioner said, “yes, ” and motioned
towards his pocket. Id. at 78, 106. Officer Gorman
ordered Petitioner to turn around, to put his hands on top of
his head, and to interlock his fingers. Id. at
78-79. Petitioner did not comply, and Officer Gorman asked
him if “he had anything on him that would hurt me,
” to which Petitioner responded, “No.”
Id. at 80.
Officer Gorman positioned Petitioner for a pat down for
weapons, Officer D'Arcangelo saw a gun in
Petitioner's waistband and screamed, “gun.”
Id. at 80-81, 137. He then grabbed the gun, a loaded
.22 caliber handgun, while the other officers secured
Petitioner, who stated, “I need that gun for my
protection” or “I need it for my
protection.” Id. at 82, 142, 165. Petitioner
was then arrested. None of the officers involved in the
incident saw any other person or vehicle during their
interaction with Petitioner. Id. at 69-71, 144, 168.
a grand jury sitting in Atlantic County returned an
indictment charging defendant Eugene I. Kelly with
third-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b); fourth-degree unlawful possession of hollow-point
bullets, N.S.J.A 2C:39-3(f); and second-degree possession of
a weapon by a convicted person, N.J.S.A. 2C:39-7.
After a motion to suppress was denied, Kelly entered into a
plea agreement whereby he pled guilty to one count of
third-degree unlawful possession of a handgun in satisfaction
of all charges. In return, the State agreed to recommend a
sentence not to exceed five years and to dismiss counts two
and three of the indictment. Kelly also agreed to waive his
right to appeal pursuant to Rule 3:9-3(d).
Prior to his sentencing, Kelly moved pro se to withdraw his
guilty plea. Judge Bernard E. DeLury, Jr., denied Kelly's
motion and informed him that, as part of the plea bargain, he
waived his right to appeal, and if he decided to appeal,
“the State can withdraw from this guilty plea pursuant
to the rule and then reinstate the dismissed charges against
you and proceed along the prosecution's path to
trial.” Kelly indicated that he understood. Judge
DeLury then imposed the agreed-upon five-year term in
accordance with the plea agreement.
Kelly then filed a pro se notice of appeal, and the State
moved to annul the plea agreement. Judge DeLury granted the
State's motion, vacated Kelly's conviction, and
restored all charges. Kelly then withdrew his appeal and
moved for reconsideration of his motion to suppress, which
New Jersey v. Kelly, A-0708-13T1 (N.J. App. Div.
April 15, 2015) (per curiam). During the initial proceedings,
the suppression hearing, and plea negotiations, Petitioner
was represented by Eric Shenkus of the Public Defender's
Office. Mr. Shenkus withdrew as counsel and was replaced by
Jill R. Cohen, Esq., who represented Petitioner from
pre-trial motions through trial.
matter proceeded to trial on May 19, 2009, and Petitioner was
convicted of second-degree possession of a weapon by a
convicted person in violation of N.J. Stat. Ann.
2C:39-7b. ECF No. 14-10 at 300. After trial, Judge
DeLury granted the State's motion to impose an extended
term and sentenced Kelly to a sixteen-year term with an
eight-year minimum term. New Jersey v. Kelly,
A-0708-13T1 (N.J. App. Div. April 15, 2015). Kelly appealed,
and the Appellate Division affirmed. State v. Kelly,
No. A-1096-09 (App. Div. Jan. 31, 2012). The Supreme Court of
New Jersey denied certification. 210 N.J. 480 (2012).
then filed pro se a petition for post-conviction
relief (PCR). See ECF No. 14-19. Petitioner argued,
inter alia, that his trial counsel was ineffective for
failing to ask Officer Gorman certain questions on
cross-examination at trial about Petitioner's alleged
intoxication. ECF No. 14-21 at 6. After the appointment of
counsel and the submission of briefs, Judge DeLury heard oral
April 3, 2013, Judge DeLury filed a sixteen-page decision
denying Kelly's petition without a hearing. See
ECF No. 14-21. He determined that Kelly's arguments were
procedurally barred under N.J. Rule 3:22-5, because they were
“identical to those raised on appeal.” The judge
further found that, even if Rule 3:22-5 were not applied,
Kelly had not established a prima facie case for ineffective
assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). Relying on
Strickland, Judge DeLury determined that “it
cannot be said that Petitioner's counsel did not act
reasonably when [s]he chose to question Officer Gorman in the
manner in which [s]he did.” ECF No. 14-21 at
appealed the denial of his PCR petition to the Appellate
Division, which affirmed on the basis of Judge DeLury's
decision. State v. Kelly, 2015 WL 1649249 (N.J. App.
Div. April 15, 2015).
11, 2015, Petitioner filed the instant Petition pursuant to
28 U.S.C. § 2254. In it, Petitioner raises an
ineffective assistance of counsel claim, a Fourth Amendment
claim, and a due process claim. See ECF No. 1. The
Court screened the Petition and allowed the ineffective
assistance of counsel and due process claims to
proceed. See ECF Nos. 8 (opinion) and 9
(order). Petitioner argues that his trial counsel was
ineffective for the following reasons:
• Trial counsel failed to show the jury the jacket he
was wearing at the time of the incident “so they could
see it was impossible to see a gun in plain view sight so big
and long as it was.”
• Trial counsel failed to call a taxi cab service owner
as a witness to testify that Petitioner was waiting for a
• Trial counsel failed to cross-examine Officer Gorman
as to whether he smelled alcohol on Petitioner; and
• Trial counsel failed to ask why the police dispatch
report did to mention an intoxicated person.
1 at 6. Petitioner also asserts a violation of his right to
due process in that Officer Gorman's testimony at the
grand jury differed from his testimony given at the
suppression motion hearing regarding the pat down of
Petitioner, i.e. that Officer Gorman committed perjury. ECF
No. 1 at 8.
Standard of Review
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is the proper mechanism for a prisoner to
challenge the fact or duration of one's confinement
because the petitioner is in custody in violation of the
Constitution or the laws of the United States. See
28 U.S.C. § 2254(a); Pinholster, 563 U.S. at
181; Preiser v. Rodriquez, 411 U.S. 475, 498-99
(1973). A habeas petitioner bears the burden of establishing
his entitlement to relief for each claim presented in the
petition. See Harrington v. Richter, 562 U.S. 86, 98
standard used in reviewing habeas claims under § 2254
depends on whether those claims have been adjudicated on the
merits by the state court. If they have not been adjudicated
on the merits, the Court reviews de novo both legal questions
and mixed factual and legal questions. See Appel v.
Horn, 250 F.3d 203, 210 (3d Cir. 2001). If the state
court adjudicated the claim on the merits, then 2254(d)
limits the review of the state court's decision as
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding . . . .
28 U.S.C. § 2254(d). If a claim has been adjudicated on
the merits in state court,  this Court “has no
authority to issue the writ of habeas corpus unless the
[state court's] decision ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal Law, as determined by the Supreme Court of the United
States,' or ‘was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.'” Parker v.
Matthews, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C.
begins the analysis under § 2254(d)(1) by determining
the relevant law clearly established by the Supreme Court.
See Yarborough v. Alvarado, 541 U.S. 652, 660
(2004). Clearly established law “refers to the
holdings, as opposed to the dicta, of [the Supreme
Court's] decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000). A court must look for “the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003). “[C]ircuit precedent does not constitute
‘clearly established Federal law, as determined by the
Supreme Court,' [and] therefore cannot form the basis for
habeas relief under AEDPA.” Parker, 567 U.S.
at 48-49 (quoting 28 U.S.C. § 2254(d)(1)).
decision is “contrary to” a Supreme Court holding
within 28 U.S.C. § 2254(d)(1), if the state court
applies a rule that “contradicts the governing law set
forth in [the Supreme Court's] cases” or if it
“confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a [different result.]”
Williams, 529 U.S. at 405-06. Under the
“‘unreasonable application' clause of §
2254(d)(1), a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the Supreme Court's] decisions but unreasonably
applies that principle to the facts of the prisoner's
case.” Williams, 529 U.S. at 413. “[A]n
unreasonable application of federal law, ” however,
“is different from an incorrect application of federal
law.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Williams, 529 U.S. At 410).